A Cautious Man
June 29, 2009
Think It Over Judge One More Time?
The United States Supreme Court decided Ricci v. DeStefano this morning. That's the New Haven Firefighter case (otherwise known as Judge Sotomayor's "reverse discrimination" case). The majority found that the City did not provide a sufficient basis for rejecting the results of a promotion exam which the City perceived to be racially skewed. The opinion can be found at this link (Note, it's a PDF).

So, did the majority of the Supreme Court conclude that Judge Sotomayor was an "unwise Latina" who violated constitutional principles in order to discriminate against white firefighters? Not exactly. Instead, the majority concluded that the law in this area embodies conflicting principles, and that is was the job of the Supreme Court to provide guidance as to how to reconcile those principles. Far from faulting the lower court decisions, the Supreme Court's decision recognized that it was taking the opportunity to clarify the law, and to show what a jurisdiction needed to do in order to conclude that test results in a simlar situation were or were not evidence of an improper racial disparity.

Some quotes supporting this. From page 20 of the decision -

We consider, therefore, whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination. Courts often confront cases in which statutes and principles point in different directions. Our task is to provide guidance to employers and courts for situations when these two prohibitions could be in conflict absent a rule to reconcile them. In providing this guidance our decision must be consistent with the important purpose of Title VII—that the work-place be an environment free of discrimination, where race is not a barrier to opportunity.

Also from page 20-21, the majority says that an argument that an employer could never consider the results, in deciding that there was an impermissible disparate racial impact, goes too far -

Petitioners take a strict approach, arguing that under Title VII, it cannot be permissible for an employer to take race-based adverse employment actions in order to avoid disparate-impact liability—even if the employer knows its practice violates the disparate-impact provision. See Brief for Petitioners 43. Petitioners would have us hold that, under Title VII, avoiding unintentional discrimination cannot justify intentional discrimination. That assertion, however, ignores the fact that, by codifying the disparate-impact provision in 1991, Congress has expressly prohibited both types of discrimination. We must interpret the statute to give effect to both provisions where possible.

Finally, in the conclusion on page 34 -

Our holding today clarifies how Title VII applies to resolve competing expectations under the disparate-treatment and disparate-impact provisions. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.

There's a chance (okay, a likelihood) that some commentators would call the decision a "rebuke" or "rejection" of decision that Judge Sotomayor joined in the appellate court. Actually reading the decision shows that is not the case.



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